Jones v. Le Tombe. 3 D. * BINGHAM, Plaintiff in Error, v. CABOT et al. [* 382] 3 D. 382. When the jurisdiction of the court below depends on the citizenship of the parties, if the record does not show the necessary citizenship, the cause will be struck from the docket.1 THIS action came again before the court on a writ of error; and an objection was taken to the record, that it was not stated, and did not appear in any part of the process and pleadings, that the plaintiffs below and the defendant were citizens of different States, so as to give jurisdiction to the federal court. THE COURT were clearly of opinion, that it was necessary to set forth the citizenship, (or alienage, where a foreigner was concerned,) of the respective parties, in order to bring the case [*384] within the jurisdiction of the circuit court; and that the record, in the present case, was in that respect defective. This cause and many others in the same predicament, were accordingly struck off the docket. 4 D. 7, 12, 22; 1 C. 343; 2 C. 9; 8 P. 112; 11 P. 351; 12 P. 657; 2 H. 9; 6 H. 31; 16 H. 314. *JONES, Indorsee, v. LE TOMBE. 3 D. 384. [*384] A bill of exchange drawn by the consul-general of France on the public treasury of his country, shows on its face that the contract was on account of the government, that the engagement was official and not personal, and that it is not a cause of action against the drawer. CAPIAS in case. This was an action brought originally, in the supreme court, by John Coffin Jones, a citizen of Massachusetts, as indorsee of James Swan, against the defendant, the consul-general 1 In this case, the judgment below was against the plaintiff in error, and striking the cause from the docket was equivalent to a refusal to reverse the judgment of the court below. Jones v. Le Tombe. 3 D. of the French republic, as drawer of a number of protested bills of exchange. The bills were signed " Le Tombe, Le Consul-General," and directed " Au Citoyen Payeur Général des depenses du Departement de A la Trésorerie Nationale à Paris," and they purported to be for "valeur reçue de dit, conformément au compte rendu au Ministre," &c., &c. They bore a certificate showing that they had been registered at the consulate of France for the port of Philadelphia, and a declaration by Adet, the Minister Plenipotentiary of the French Republic, that the faith of the French nation was pledged for their payment, and requesting the proper officer of the treasury to pay them. [* 385 ] At the opening of the term, Dallas and Du Ponceau had obtained a rule, that the plaintiff show his cause of action, and why the defendant should not be discharged on filing a common appearance; and now Ingersoll and E. Tilghman showed cause, produced the bills of exchange, and the plaintiff's positive affidavit of a subsisting debt, including a declaration, "that he was induced, principally, to purchase the bills, in consideration of the character and private fortune of the defendant, and that without the fullest confidence in the personal credit and responsibility of the defendant, he verily believed he would not have purchased them." They then contended, that the positive affidavit was sufficient, in this court, for holding the defendant to bail; that it was not incumbent on them to show to whose use the money was applied, since it was paid to the defendant; that when a consul acts as a merchant, and draws bills for cash advanced, he is not entitled to any privilege; that the defendant must prove that he had a right to draw the bills as consul; that even if he had the right to draw, he might pledge his private credit, in aid of his official function; and that the critical situation of the French republic raises a presumption, that the reliance was placed on the private credit of the defendant. The counsel for the defendant were stopped when they rose to reply; and the court were unanimously and clearly of opinion, that the contract was made on account of the government; that the credit was given to it as an official engagement; and that, therefore, there was no cause of action against the present defendant. The rule was, accordingly, made absolute; and the plaintiff soon afterwards discontinued the action. A resolution, or law of the State of Connecticut, setting aside a decree of a court of probate, and granting a new hearing before the same court, with liberty of appeal, is not an ex post facto law, within the meaning of the 10th section of the 1st article of the Constitution of the United States. That article has reference only to crimes. In error from the State of Connecticut. The cause was argued at the last term, (in the absence of the chief justice,) and now the court delivered their opinions seriatim. CHASE, J. The decision of one question determines, in my opinion, the present dispute. I shall, therefore, state from the record no more of the case than I think necessary for the consideration of that question only. The legislature of Connecticut, on the second Thursday of May, 1795, passed a resolution or law, which, for the reasons assigned, set aside a decree of the court of probate for Hartford, on the 21st of March, 1793, which decree disapproved of the will of Normand Morrison, the grandson, made the 21st of August, 1779, and refused to record the said will; and granted a new hearing by the said court of probate, with liberty of appeal therefrom, in six months. A new hearing was had, in virtue of this resolution, or law, before the said court of probate, who, on the 27th of July, 1795, approved the said will, and ordered it to be recorded At August, 1795, appeal was then had to the superior court at Hartford, who, at February term, 1796, affirmed the decree of the court of probate.\ Appeal was had to the supreme court of errors of Connecticut, who, in June, 1796, adjudged that there were no errors. More than eighteen months elapsed from the decree of the court of probate, on the 1st of March, 1793, and thereby Caleb Bull and wife were barred of all right of appeal, by a statute of Connecticut. There was [387] no law of that State whereby a new hearing, or trial, before the said court of probate might be obtained. Calder and wife claim the premises in question, in right of his wife, as heiress of N. Morrison, physician; Bull and wife claim under the will of N. Morrison, the grandson. The counsel for the plaintiffs in error, contend that the said resolu Calder v. Bull. 3 D. tion or law of the legislature of Connecticut, granting a new hearing in the above case, is an ex post facto law, prohibited by the constitution of the United States; that any law of the federal government, or of any of the state governments, contrary to the constitution of the United States, is void; and that this court possesses the power to declare such law void. It appears to me a self-evident proposition, that the several state legislatures retain all the powers of legislation delegated to them by the state constitutions, which are not expressly taken away by the constitution of the United States. The establishing courts of justice, the appointment of judges, and the making regulations for the administration of justice within each State, according to its laws, on all subjects not intrusted to the federal government, appears to me to be the peculiar and exclusive province and duty of the state legislatures. All the powers delegated by the people of the United States to the federal government are defined, and no constructive powers can be exercised by it, and all the powers that remain in the state governments are indefinite, except only in the constitution of Massachusetts. The effect of the resolution or law of Connecticut above stated, is to revise a decision of one of its inferior courts, called the court of probate for Hartford, and to direct a new hearing of the case by the same court of probate that passed the decree against the will of Normand Morrison. By the existing law of Connecticut, a right to recover certain property had vested in Calder and wife (the appellants) in consequence of a decision of a court of justice, but, in virtue of a subsequent resolution or law, and the new hearing thereof, and the decision in consequence, this right to recover certain property was divested, and the right to the property declared to be in Bull and wife, the appellees. The sole inquiry is, whether this resolution or law of Connecticut, having such operation, is an ex post facto law, within the prohibition of the federal constitution? Whether the legislature of any of the States can revise and correct by law, a decision of any of its courts of justice, although not prohibited by the constitution of the State, is a question of very great importance, and not necessary now to be determined, because the resolution or law in question does not go so far. I cannot [*388] subscribe to the omnipotence of a state * legislature, or that it is absolute and without control, although its authority should not be expressly restrained by the constitution, or fundamental law of the State. The people of the United States erected their constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect Calder v. Bull. 3 D. their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free republican governments, that no man should be compelled to do what the laws do not require, nor to refrain from acts which the laws permit. There are acts which the federal or state legislature cannot do, without exceeding their authority. There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power on which it is founded./A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a judge in his own cause; or a law that takes property from A. and gives it to B. It is against all reason and justice for a people to intrust a legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit of our state governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our federal or state legislature possesses such powers, if they had not been expressly restrained, would,* in my opinion, be [* 389 [ a political heresy altogether inadmissible in our free republican governments. All the restrictions contained in the constitution of the United States on the power of the state legislatures, were provided in favor of the authority of the federal government. The prohibition against |